S. 52 of the Provincial Insolvency Act allows the interim receiver to be placed in possession of the property attached in execution of the decree-holder's decree and to sell that property.

Pollock, A J C—On 30th April 1932, the Laxmi Oil Mills Co. Ltd., hereinafter referred to as the decree-holder, obtained a decree against the Firm of Sukhdeo Kanhaiyalal, of which the owner is Nathmal, and in execution attached certain house property. On 17th April 1932, Nathmal had executed a document purporting to give this house property to his wife, but her objection to the attachment under O. 21, R. 58 was dismissed.

2. Certain creditors of Nathmal applied to the Insolvency Court to have him adjudged insolvent, and one of the alleged acts of insolvency was the execution of the gift deed dated 17th April 1932; that application has been hotly contested and is not yet decided.

3. Mr. Gadgil who was appointed interim receiver of the debtor's property, applied to the lower Court before whom the execution proceedings were pending to stay the sale of the above house property. This application purported to be made under S. 52, Provincial Insolvency Act. The lower Court held that S. 52 applied and stayed the sale. The decree-holder has now come up in revision. S. 52, Provincial Insolvency Act, runs as follows:

Where execution of a decree has issued against any property of a debtor which is saleable in execution, and before the sale thereof notice is given to the Court executing the decree that an insolvency petition by or against the debtor has been admitted, the Court shall, on application, direct the property, if in the possession of the Court, to be delivered to the receiver; but the costs of the suit in which the decree was made and of the execution shall be a first charge on the property so delivered and the receiver may sell the property or an adequate part thereof for the purpose of satisfying the charge.

4. It is not open to the decree-holder to contend that the property against which he is proceeding is not the property of the judgment-debtor, and there are therefore two questions to be decided: first whether the property in dispute is in the possession of the executing Court, and secondly whether the word ''receiver'' in the section includes an interim receiver. It was held in 1926 Sind 199 Lyon Lord & Co. v. Virbhandas Rattanchand,1926 AIR(Sind) 199 that S. 52 applies only to moveable property and that immoveable property which is attached under O. 21, R. 54, Civil P.C., cannot be said to be in possession of the executing Court. The balance of authority however is the other way, and it appears to me unlikely that it was intended that the receiver should be entitled to get possession only of immoveable property or that the executing decree-holder should be entitled to a charge for his costs only if the property is moveable. It has been held in 57 Gal 122 Haranchandra Chakravarty v. Jai Chand, 1929 AIR(Cal) 524 Sivasami Odayar v. Subramania Aiyar, 1932 AIR(Mad) 95 Mahasukh Jhaverdas v. Valibhai Fatubai,1928 AIR(Bom) 177 that immoveable property attached by an executing Court is in custodia legis and must therefore be deemed to be in possession of the Court. I respectfully agree with that view and hold accordingly.

5. Section 52 clearly contemplates the presentation of an application under that section before the adjudication of insolvency, and therefore it appears clear that the word ''receiver'' must in such case include an interim receiver, who would be the only receiver in existence before adjudication. I am supported in this view by the decision in 55 Mad 316 Sivasami Odayar v. Subramania Aiyar, 1932 AIR(Mad) 95 Madho Ram v. Raj Kishan, 1932 AIR(Lah) 471 Ghanshyam Das v. Jainarain, 1934 AIR(All) 444. I respectfully dissent from the opposite view expressed in 1926 Sind 199 Lyon Lord & Co. v. Virbhandas Rattanchand,1926 AIR(Sind) 199.

6. The receiver was therefore entitled to ask to be placed in possession of the property attached in execution of the decree-holder's decree and he is entitled to sell that property. It is obviously in the interest of the decree-holder and all creditors of the debtor that the property sho